The First Amendment to the U.S. Constitution has always had inextricable internal conflicts.
The first sentence of the original text of the amendment is "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof", which can be translated as "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
In American legal tradition, the former sentence is called the "establishment clause" and the latter is the "free exercise clause".
The problem is that when governments are prohibited from establishing a religion, the free exercise of that religion is often restricted.
The Supreme Court, which is now controlled by six conservative justices, has recently sided with the "free exercise clause" in two recent judgments, raising concerns that the separation of church and state based on the "establishment clause" is correct. nibbled.
Does the government have to fund religion?
In Carson v. Makin, the Supreme Court strengthened previous precedents that the government "may" fund religious education, ruling that in some cases the government "must" fund religious education, otherwise it would violate Article 1 of the Constitution The "Free Exercise Clause" of the One Amendment.
The case involved Maine's education grant system.
The state provides free public education for schoolchildren, but some sparsely populated rural areas do not have secondary schools. In this regard, the local government will designate specific public or private schools in other areas for students in the area to go to school, or directly give students subsidies. , let them choose which school they want to attend.
In the subsidy system, government funds can only be used to subsidize school institutions that do not provide religious education.
The Supreme Court's conservative Chief Justice John Roberts said in his judgment that this was a clear violation of the "free exercise clause."
He believes that the Maine government could not subsidize the education of students, or build more public schools, but when the state government decides to subsidize students to go to private schools, but only subsidizes non-religious schools, it constitutes a violation of religion. discrimination.
According to this logic, when the government decides to fund an industry, it must not fund certain institutions in the industry because they may use government funds to promote a certain religion.
This actually involves two interpretations of the "establishment clause" of the First Amendment to the Constitution.
Does the government want to be neutral between religious and non-religious institutions in granting grants, or should no government grant go to institutions that promote any particular religion?
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The former, to a certain extent, treats "non-religion" itself as a religion.
Just as the government cannot fund only Christian organizations and not Islamic organizations (all else being equal), so the government cannot fund only non-religious groups and no religious groups at all.
The latter regards "non-religion" as a non-religious nature, so the government only subsidizes non-religious causes, which does not constitute a form of religious discrimination.
At a time when the Supreme Court treats "non-religion" as a religion, more and more government funding will go to religious organizations.
In his dissenting opinion, recently retired liberal Justice Stephen Breyer pointed out that the Supreme Court had never previously required that the government "must" fund religious education as part of a plan to provide public education for all.
He worries that the logic of the decision could be extended to other benefits.
Arbitrary interpretation of history
In Kennedy v. Bremerton School District, the Supreme Court's conservative justices again used the same "text and History" approach to interpret the Establishment Clause, ruling in favor of Joseph Kennedy, an American football coach who was fired for leading students to kneel in prayer on the field, arguing that the public school's actions violated the protections of the Free Exercise Clause .
The incident originated when Kennedy walked to the center of the court where he was only entitled to enter because of his coaching status, knelt down and prayed after the game, and later invited his student players to participate.
The school first appealed to him to stop acting, or to pray in a more private space, such as after the crowd had dispersed.
However, after the school warned that he would be punished, Kennedy took the initiative to invite people to pray, causing what the school thought was a chaotic scene, and was eventually refused by the school to continue his employment contract.
Conservative Justice Neil Gorsuch, who wrote the judgment, argued that Kennedy's public prayers in the middle of the court during his paid time were private, brief and quiet, and that the school's refusal to renew the contract was a violation of free speech and The guarantee of religious freedom, and for the defense of "the coach's prayer is causing the players to join the pressure", Gorsuch said that he did not see any evidence that the students felt pressure to join the prayer (although the school said that some parents have said it Children are embarrassed to refuse to join in prayer).
In response, liberal Justice Sonia Sotomayor criticized Gorsuch for "misinterpreting the facts of the case."
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More seriously, the Kennedy decision overturns the "Lemon Test" that has been used since 1971 to check whether the government has "established a religion" - according to this test, the government can only meet the following requirements: Religious assistance can only be provided if: (1) the primary purpose of such assistance is irrelevant to religion; (2) such assistance must neither promote nor prohibit religion; (3) it will not constitute excessive entanglement between religion and government.
Gorsuch believes that the Raymond test should not be used as a basis for understanding the "establishment clause", but to determine whether government actions "establish a religion" should be "consistent with history and faithfully reflect the understanding of the founding fathers" to make a judgment. .
Although the Raymond test is not a rigorous criterion, it at least provides a relatively clear criterion.
In contrast, the interpretation of history has no established criteria, nor does it belong to the professional scope of judges. To a certain extent, it can be said that judges have the final say according to their personal preferences.
Sotomayor criticized: "If even judges and justices, who have heard arguments and arguments tailored by opposing sides to precise legal issues, often disagree (and err) on their amateur interpretations of history, How can school management and staff adapt to [this reading of the law]?”
Conservative judges don't seem to care about the arbitrariness of this "historical interpretation" approach.
Gorsuch only said that "historical reading" is the way the court has always understood the "establishment clause", but did not explain how this "historical reading" operates in a more specific way.
The First Amendment to the U.S. Constitution guarantees that "the government shall not establish religion" and "the people have the freedom to believe in religion." Naturally, there will be inherent conflicts.
How to resolve this kind of conflict in each specific case often involves very complicated and cumbersome judgments. Proposing operational methods for this judgment, such as the above-mentioned "Raymond test", often makes the law more predictable. , and more credible.
The personal preferences and beliefs of the justices seem to be the most reliable yardsticks when people lose their predictable and specific ways of operating.
If the Supreme Court system does not change, the conservative majority may be maintained for decades, and the trend of religious freedom further suppressing the separation of church and state seems difficult to reverse.
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